Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Sorting out detainees’ legal rights

Posted Sat, July 28th, 2012 10:00 pm by Lyle Denniston

The chief judge of the federal District Court in Washington has assigned himself the task of sorting out the rights of detainees at Guantanamo Bay to meet with their lawyers. The move by Chief Judge Royce C. Lamberth grew out of a new move by the Obama Administration to strictly limit the lawyers’ access to their clients, when a detainee’s court challenge has been “terminated.” The judge’s order, issued Friday, is here. It followed a suggestion made by Justice Department lawyers in a filing on Thursday.

One key issue that Judge Lambert may have to decide in this new review is whether, in fact, the rights of detainees have been “terminated” by a loss in court of an initial habeas challenge . That could implicate the question of whether the constitutional right to go to court to contest detention, established by the Supreme Court in the 2008 decision in Boumediene v. Bush, has — in effect — an expiration date.

Earlier this month, lawyers for two Guantanamo detainees started a new challenge, claiming that the Administration was switching from having a federal judge decide when a lawyer can meet with a detainee at the U..S. military prison in Cuba, to an arrangement in which the commanding general there would have the final veto power over such access. (The blog reported on this challenge in this post on July 13.)

The dispute arose when detainee lawyer David H. Remes was told he could seek permission to meet with his clients at Guantanamo in August only if he were willing to sign a new “memorandum of understanding” that imposes a series of new restrictions on that access, as well as on the lawyers’ use of information that they obtain in talking to their clients. Remes refused to sign, and filed his challenge. In his court papers, he contended that the new restrictions run counter to orders that have been followed for at least four years on counsel access, under a judge’s supervision, and would undermine the lawyers’ ability to represent their clients.

The government, in its response on Thursday, acknowledged the new arrangement. It told Judge Lamberth that it would allow Remes to meet with a number of his clients in August, if he would sign the new memorandum. It promised that, for this one visit, Remes’s signing of the document would not go beyond this trip, that he would not be understood to have endorsed the new arrangement, and that his agreement this time would not bar him from seeking to challenge the new arrangement. This one-time arrangement, the document said, would make it unnecessary for the District Court to move with “unnecessary urgency” to resolve the entire counsel access issue.

The Department said that the plea for continued counsel access has now been made by at least six detainees who no longer have active cases challenging their detention, and suggested that more are expected to make the same request. It is advisable, then, the Department argued, for a single judge on the District Court — preferably Chief Judge Lamberth — to take on the task of resolving the issue for all cases in which the issue arises.

“Consolidation before a single judge for a decision on behalf of the entire court would avoid duplication of effort, avoid the potential for inconsistent decisions by individual judges, and bring about a more efficient and speedy resolution to this important issue,” the Department argued.

Although this request served to put the matter before the Court, the government’s filing gave no hint that it is prepared — on its own — to relax the new restrictions. In a negative tone, the document said the detainees were seeking a permanent court order “guaranteeing their counsel continued access to a military detention facility on foreign soil.” The Supreme Court in its Boumediene decision, however, had given detainees’ a constitutional right to go to court, with a lawyer’s help, to challenge detention at a site over which the U.S. government has complete control and thus was not the equivalent of a military post overseas.

The government document stressed that the new arrangement to restrict the lawyers’ activities would be limited to detainees who “have no case pending” either because they have lost their initial habeas challenge, or have withdrawn it.

Remes and other lawyers for detainees have contended that the rights their clients have been given by the Supreme Court to challenge their ongoing detention do not lapse with a single loss in court, but may be pressed anew, if new facts arise, or if detention becomes further prolonged, thus raising new issues about its validity when an individual continues to be held even though no war crimes charges are contemplated for many at Guantanamo.

In Judge Lamberth’s response, he took on the issue of counsel access for decision by himself alone, he set an August 6 deadline for the Justice Department to file a full response to the detainees’ challenge to the new arrangement, and set an August 13 deadline for the detainees’ counsel to reply. He scheduled a hearing for 10 a.m. on August 17. The Lamberth review will now proceed as a new case, under District Court docket Misc. No. 12-398. All documents are to be filed in that case.

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On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]